U.S. Department of the Air Force, Hill Air Force Base and AFGE Local 1592 (Authority decision, April 5, 1990)

FLRA remand decision. The Authority sets aside an arbitrator's final denial of a performance appraisal grievance and returns the dispute for further submissions and a new decision. The grievance remains unresolved. Orders involving arbitral awards under 5 U.S.C. § 7122 generally are excluded from judicial review by 5 U.S.C. § 7123(a)(1), unless the order involves an unfair labor practice under § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

An Air Force employee at Hill Air Force Base challenged a fully successful performance rating. The arbitrator first issued a tentative decision in the employee's favor and gave both parties until July 10 to submit information on a rating issue they had not addressed. Before that deadline, he used testimony from another arbitration to issue a final decision denying the grievance. The Authority held that, after promising the parties a chance to respond, the arbitrator could not decide the case before the deadline expired. It set aside the final addendum and returned the dispute so both sides could address the rating issue before a new decision.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Final addendum set aside; case remanded to the parties for resubmission to the arbitrator.
• Key point: An arbitrator who invites submissions before a stated deadline must allow that period to run before issuing a final decision.

Full text (FLRA public release)

[ v35 p417 ]
35:0417(54)AR

The decision of the Authority follows:

35 FLRA No. 54

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR
FORCE

AIR FORCE LOGISTICS
COMMAND

HILL AIR FORCE BASE,
UTAH

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1592

(Union)

0-AR-1774

DECISION

April 5, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Garth L. Mangum filed by the Union under section 7122(a) of the Federal Service Labor- Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.

The Arbitrator denied a grievance challenging the grievant's performance rating. For the following reasons, we conclude that the Arbitrator's award is deficient and that the matter should be remanded to the parties for resubmission to the Arbitrator.

II. Background and Arbitrator's Award

The grievant received an overall performance rating of "fully successful" for the 1988 appraisal year. The previous year, the grievant received, from a different supervisor, an overall performance rating of "excellent." A grievance was filed protesting the "fully successful" rating and was submitted to arbitration on the following stipulated issue:

Did Management violate the Master Labor Agreement, law or Air Force regulations in the performance appraisal and rating of [the grievant]? If so, what is the appropriate remedy?

Award at 1. The Arbitrator stated that the "nub" of the issue was "whether [the grievant] should have been assessed at 7 or higher on the critical elements and whether 7 is meeting or exceeding the requirements of a fully successful rating." Id. at 3.

The Arbitrator first determined that there was "no procedural fault in the appraisal and rating process." Id. at 4. The Arbitrator then noted the requirements for an overall rating of "excellent" and found that, because the grievant had received a rating of 7 on all critical elements, the grievant should have been given an overall rating of excellent. However, the Arbitrator also stated that, because "this issue was never raised by the Union and no testimony was taken on it," he would hold the final decision open pending "written submissions from both parties[.]" Id. at 5.

Accordingly, in his award of June 19, 1989, the Arbitrator "tentatively sustained" the grievance. Id. The Arbitrator stated that he would issue a "final decision" based on the parties' written submissions. June 19, 1989, Letter Accompanying June 19 Award at 1. The Arbitrator also stated that, if the parties did not provide further information by July 10, 1989, the tentative decision would constitute a "positive sustaining of the grievance." Id.

On June 29, 1989, the Arbitrator issued a final decision denying the grievance. The Arbitrator stated that "the necessary information emerged from testimony in a companion case . . . in further hearing June 26, 1989." Addendum to the June 19, 1989 Decision at 2. Based on that information, the Arbitrator found that because he had "no sound means of judging the Grievant's performance, he [was] left to examine the procedures by which Management arrived at its rating." Id. The Arbitrator concluded that, "having found no procedural fault," the grievance was denied. Id.

III.Positions of the Parties

The Union contends that the award is deficient because the Arbitrator issued his final decision without giving the parties the opportunity to submit the additional information requested by the Arbitrator in his tentative decision. The Union asserts that it should be permitted to submit the requested information to the Arbitrator and requests that the Authority remand the matter for further consideration by the Arbitrator.

The Agency opposes the Union's request. The Agency notes that the Arbitrator exercised his authority to hold open the decision for further clarification because he was confused by the information provided by the parties. The Agency states that the Arbitrator "received no communication from either party prior to his enlightenment at a later arbitration." Opposition at 1. The Agency asserts that it can "see no reason to now allow the union to offer further confusion." Id.

IV.Analysis and Conclusion

An arbitrator has considerable latitude in the conduct of a hearing. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local No. 547, 24 FLRA 959 (1986). In this regard, an assertion that an arbitrator would not allow a party to present all evidence does not, alone, provide a basis for finding an award deficient. See, for example, id.

In addition, the Authority, like the Federal courts, accords substantial deference to an arbitrator's formulation of the issues to be decided. See, for example, American Federation of Government Employees, Local 3954 and Federal Bureau of Prisons, Federal Correctional Institution, Phoenix, Arizona, 32 FLRA 782 (1988). However, an arbitrator who fails to confine a decision and remedy to the issues, as they were submitted to or formulated by the arbitrator, exceeds his or her authority. See, for example, Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447 (1986).

In our view, the situation in this case is analogous to those cases in which an arbitrator fails to confine a decision to the issues as they were submitted or formulated by the arbitrator. The Arbitrator issued a tentative decision on an issue which, he stated, had not been raised or addressed by the parties. The Arbitrator provided the parties with an opportunity to submit information on the issue and stated that he would issue a final decision based on that information. The Arbitrator stated further that, if no further information was provided by a certain date, the tentative decision would become final.

There is no basis on which to conclude that the Arbitrator was required to provide the parties with an opportunity to submit information concerning his tentative decision. Having done so, however, we find that the Arbitrator limited his authority to issue a final decision before the time limit for receipt of that information had expired. That is, the Arbitrator was required to observe the limitations he placed on his authority to resolve the grievance.

It is clear that the Arbitrator did not observe the self-imposed limitations on his authority. Accordingly, we conclude that the Arbitrator exceeded his authority and that the addendum to his tentative decision is deficient. We will, therefore, remand this matter to the parties for resubmission to the Arbitrator. On resubmission, the Arbitrator should provide the parties with an opportunity to address the issues raised by his tentative decision. Either party may, of course, timely file exceptions to the Arbitrator's final decision.

V.Decision

The addendum to the Arbitrator's tentative award is set aside. The dispute is remanded to the parties for resubmission to the Arbitrator in accordance with our decision.

FOOTNOTES:
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have footnotes.)